In Re Planas

199 B.R. 211, 10 Fla. L. Weekly Fed. B 39, 1996 Bankr. LEXIS 912
CourtUnited States Bankruptcy Court, S.D. Florida.
DecidedJuly 19, 1996
Docket18-23851
StatusPublished
Cited by15 cases

This text of 199 B.R. 211 (In Re Planas) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. Florida. primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Planas, 199 B.R. 211, 10 Fla. L. Weekly Fed. B 39, 1996 Bankr. LEXIS 912 (Fla. 1996).

Opinion

MEMORANDUM DECISION AND ORDER ON TRUSTEE’S RENEWED OBJECTION TO DEBTOR’S CLAIMED EXEMPTIONS

A. JAY CRISTOL, Chief Judge.

THIS MATTER came before the Court on June 22, 1995 and August 24, 1995, upon the Trustee’s Renewed Objection to Debtor’s Claimed Exemptions (the “Objection”), and the Non-Debtor Spouse’s Motion for Affirmative Relief and Motion to Compel Turnover of Property (the “Motion for Affirmative Relief’).

This case asks the question, “May a Debt- or eat smorgasbord or must the Debtor coming to the bankruptcy table eat the entire meal?” The Debtor in this case has:

(1) incurred debt;
(2) structured his assets in tenancy by the entireties format; and
(3) sought to discharge all his debt and keep all of the assets.

The Debtor has a homestead which is not at issue, and some personal property which may be exempted by claiming his Article X, Section 4, Florida Constitutional exemption. At issue, however, is whether the Debtor may keep a commercial warehouse, valuable stock of two corporations, a Merrill Lynch account, and a Sun Bank account while his creditors’ claims are discharged. To accomplish this, the Debtor relies on 11 U.S.C. § 522(b)(2)(B), which provides that if a property which would otherwise be property of the estate is immune from process under applicable state law, it is equally not subject to administration by the trustee in bankruptcy in a chapter 7 case. This proposition is based on the time-honored concept recognized by the laws of most states, originating in the Common Law, that a property owned by a husband and wife as tenants by the entireties cannot be reached and subjected to satisfy a claim of a creditor who has only a claim against one of the tenants in this type of ownership. This Court does not agree. Debtor may not pick the olive and the cherry, and then leave the spinach. When Debt- or comes to dine at the Bankruptcy Court table, he must eat it all — all the federal law, and he may not pick the benefits and leave the burdens.

Upon consideration of the pleadings, the written closing statements and proposed memorandum decisions submitted by both parties, the arguments of counsel, the testimony of the witnesses, and applicable ease law, the Court makes the following findings of fact and conclusions of law, pursuant to Rule 7052 of the Federal Rules of Bankruptcy Procedure.

BACKGROUND

On December 30, 1994, Juan E. Planas (“Mr. Planas,” the “Debtor”) filed an individual Chapter 7 bankruptcy petition. The Debtor listed his residential homestead, household goods, bank account, brokerage account, equity interests in two corporations, and a warehouse as property of the Debtor. He then proceeded to list all these properties as exempt as tenancy by the entireties property with his non-debtor spouse, Sylvia N. Planas (“Mrs. Planas” or the “non-debtor spouse”). Mr. and Mrs. Planas have been married for 32 years and have adult children.

Specifically, the Debtor claims the following property as exempt based on his asser *213 tion that he and his wife jointly hold the property as tenants by the entirety:

a. An account at Merrill Lynch, Pierce, Fenner & Smith, Inc. with a balance as of the petition date of approximately $67,-000.00;
b. An account as SunBank/Miami with a balance as of the petition date of approximately $300.00;
c. Debtor’s stock in two businesses, Eastern Contractors Corp. and Eastern Drywall Corp., with a claimed market value of $30,000.00;
d. All of Debtor’s household goods and art objects with a claimed market value of $4,000.00; and
e. A warehouse at 7152 N.W. 50th Street, Miami, Florida with claimed equity of approximately $23,000.00.

Debtor’s homestead is claimed exempt pursuant to Article X, Section 4, of the Florida Constitution and Chapter 222 of the Florida Statutes. The Trustee has not objected to Debtor’s claimed homestead exemption.

On April 14, 1995, the Trustee, James S. Feltman, filed his Renewed Objections to Debtor’s Claimed Exemptions. (CP #27). The Trustee objected to all of Debtor’s property claimed as exempt on the grounds that classification as entireties property is not a proper basis for an exemption and that the bank and brokerage accounts have not been held as entireties property because there are other names on some of the accounts. The Trustee also argued that he is entitled to liquidate all entireties property if the Debtor and his non-debtor spouse are jointly liable on any joint obligation (i.e., Debtor’s homestead and/or the Warehouse), whether reduced to judgment or not, and whether secured or unsecured. In the alternative, the Trustee requested that the Court determine that both the Merrill Lynch Account and SunBank Account not constitute entireties property under Florida law. The Trustee further sought authorization to liquidate the accounts pursuant to § 363(h) of the Bankruptcy Code. On May 12, 1995, Mrs. Planas, the non-debtor spouse, filed her Motion for Affirmative Relief. In the motion, Mrs. Pla-nas alleged that the Trustee improperly caused SunBank to turn over certain monies in a joint checking account consisting of pre- and post-petition wages. This resulted in the non-payment of insurance premiums automatically deducted from the joint checking account, causing embarrassment to the non-debtor spouse.

On June 22, 1995, a hearing was held on both the Trustee’s objection to claimed exemptions and the non-debtor’s Motion for Affirmative Relief. At the hearing, the Court requested that counsel submit memo-randa of law clarifying the issues. On August 16, 1995, the Court reset the matter for an evidentiary hearing scheduled for August 24, 1995.

STIPULATED FACTS

In June of 1980, Mr. and Mrs. Planas opened a cash management account, account number 51835, at Merrill Lynch, Pierce, Fenner & Smith, Inc. (“Merrill Lynch”). The account was titled as a joint account. Special instructions on the account application stated that Celia R. Novo, Mrs. Planas’s mother, was authorized to execute checks as agent and attorney in fact until further written notification. (Debtor’s exhibit 1).

In January of 1988, Mr. and Mrs. Planas transferred that existing Merrill Lynch cash management account to a different branch of Merrill Lynch and a new account number, 738-53755, was assigned. This cash management account was also titled jointly with right of survivorship. (Debtor’s exhibit 4). Sometime thereafter, the account number was changed to 738-96449. (Debtor’s exhibit 9).

In March of 1994, check no. 366 was written from the Merrill Lynch cash management account (738-96449) in the amount of $10,000.00, and made payable to Eastern Contractors Corp., a Florida corporation owned by Mr. and Mrs. Planas.

In May of 1994, check no.

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Cite This Page — Counsel Stack

Bluebook (online)
199 B.R. 211, 10 Fla. L. Weekly Fed. B 39, 1996 Bankr. LEXIS 912, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-planas-flsb-1996.